Special Issue

295 Pages·2017·6.61 MB·English

by  Mika Viljanen

Editors–in–Chief
Matthias Goldmann; Russell Miller; Jule Mulder; Emanuel Towfigh; Floris de Witte

Senior Editors
Matej Avbelj; Betsy Baker; Jürgen Bast; Gralf-Peter Calliess; Patrycja Dabrowska;
Jen Hendry; Elisa Hoven; Agnieszka Janczuk-Gorywoda; Malcolm MacLaren;
Stefan Magen; Nora Markard; Ralf Michaels; Anna Katharina von Oettingen;
Emanuela Orlando; Niels Petersen; Christoph Safferling; Karsten Schneider

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ISSN: 2071-8322 / ISSNL: 2071-8322

Vol. 18 No. 05 Pages 1017-1308 01 September 2017

Table of Contents

Special Issue
Traditions, Myths, and Utopias of Personhood

Guest Editors
Toni Selkälä & Mikko Rajavuori

Toni Selkälä & Mikko Rajavuori

Traditions, Myths, and Utopias of Personhood: An 1017-1068
Introduction

Table of Contents
Table of Contents, cont.

Visa Kurki

Animals, Slaves, and Corporations: Analyzing Legal 1069-1090
Thinghood

Lisette ten Haaf

Unborn and Future Children as New Legal Subjects: An 1091-1120
Evaluation of Two Subject-Oriented Approaches—The
Subject of Rights and the Subject of Interests

Tuo Yu

Approaches for Dealing with the “Natural Person” in 1121-1144
the Chinese Legal System: A Statutory Way and a
Principled Way

Jannice Käll

A Posthuman Data Subject? The Right to Be Forgotten 1145-1162
and Beyond

Ukri Soirila

Persons and Things in International Law and “Law of 1163-1182
Humanity”

Mikko Rajavuori

Making International Legal Persons in Investment 1183-1228
Treaty Arbitration: State-owned Enterprises along the
Person/Thing Distinction

Susanna Lindroos-Hovinheimo

There Is No Europe—On Subjectivity and Community in 1229-1246
the EU

Table of Contents
Table of Contents, cont.

Alexis Alvarez-Nakagawa

Law as Magic. Some Thoughts on Ghosts, Non-Humans, 1247-1276
and Shamans

Mika Viljanen

1277-1308
A Cyborg Turn in Law?

Table of Contents
Special Issue
Traditions, Myths, and Utopias of Personhood

Traditions, Myths, and Utopias of Personhood: An Introduction

By Toni Selkälä & Mikko Rajavuori

Abstract

Legal personhood continues to serve an important role in the legal system. The millennial
distinction of persons and things, while often unarticulated, is an essential building block of
all legal relations. This introduction to persons and things outlines the past tradition, draws
on present myths, and construes a utopia of which the articles in this special issue will
comment, clarify, and criticize.

 PhD Candidates, University of Turku, Finland. Emails: [email protected]; [email protected]. We wish to thank Emanuel
Towfigh and all the editors at the German Law Journal for their patience and support as well as wonderful attention
to detail. We also thank Faculty of Law at the University of Turku, Turku University Foundation and eCoherence
project for generous support, which enabled us to organize Persons/Things workshop. We are also greatly indebted
to Gail Maunula for her wonderful proofreading help. Toni would further want to extend his gratitude to Law,
Science, Technology & Society research group at Vrije Universiteit Brussel and Oxford Uehiro Centre for hosting
him during the time of editing this special issue. And lastly, thanks to all the wonderful authors for making our work
easy. The usual disclaimers, obviously, apply.
1018 German Law Journal Vol. 18 No. 05
A. Introduction

“In what way is a thing not a person?” asks the bestial protagonist in Margaret Atwood’s
short story Lusus Naturae.1 In all its apparent simplicity, this is also what the articles in this
special issue on Persons/Things address. Why, what, and when does a person become a
mere thing or a thing a person?2 What is the function of the legal distinction between
persons and things, if any? The most canonical answer to this question argues that persons
are ones who command a capacity to possess things—that distinction between the two is a
means to establish property relationships. A person has rights and duties that allow her to
do, to have, and to be,3 while a thing merely exists. How much does a person have to do and
have in order to exist? Advancement in science and technology, together with globalization,
has brought about many thorny issues for law and legal systems at large to solve over past
decades. These issues share an intimate connection with the distinction between persons
and things. The legal debates over the status of animals, corporations, unborn, non-
biological machines, and nature have, for their part, made questions of personhood and
personhood’s connection to rights topical. These and other things question what is the
specific character enjoyed by natural persons, living human beings, that makes their actions
significant and their rights legally enforceable in comparison to these other entities—the
things. This introductory article, together with the articles of this special issue, argues for a
gradual re-orientation of our understanding of personhood and, with that, our appreciation
of things.

Any inquiry into legal personhood is an attempt to constitute a tradition, a particular reading
of the vast terrain of legal personhood. While the tradition of legal personhood is, in many
ways, of more recent origin than its oft-quoted millennial heritage dating it to a Roman Law
distinction between persons and things, persona and res, all attempts to justify a re-reading
of legal personhood—ours included—commence with this tradition, contrived as it may be.
In short, ours is an attempt through “the use of ancient materials to construct invented
traditions of a novel type for quite novel purposes,”4 that is, an attempt to use legal
personhood to argue that there exists a red thread connecting shamanism, fetuses, and
corporations, among others, under the umbrella of a new-found tradition. In many ways,
such an attempt clings onto a utopia of legal coherence where none might be found.
Therefore, rather than arguing for a single, theoretically sound interpretation of legal
personhood fit for the present, we trace two divergent paths and encourage following both.

1 See Margaret Atwood, Lusus Naturae, in STONE MATTRESS: NINE WICKED TALES 125, 130 (2014).
2 In what follows a person is an oft-used short-hand for a legal person but we occasionally variate and use terms
such as legal personality or legal subject to refer to legal person.
3 See JEAN-PAUL SARTRE, BEING AND NOTHINGNESS 576 (1958).
4 Eric Hobsbawm, Introduction: Inventing Traditions, in THE INVENTION OF TRADITION 1, 6 (Eric Hobsbawm & Terence
Ranger eds., 1983).
2017 Personhood: An Introduction 1019

One path leads to dilution of conditions formerly deemed essential for the existence of
personhood. Examples of such practices are relatively commonplace, for one, the norm
found in the European Data Protection Regulation equates rights with the existence of a
living natural person, while simultaneously recognizing that DNA data of a deceased person
can also constitute protected personal data.5 The other path evinces multiplication of
entities endowed with personhood in an attempt to correctly attribute rights and duties.
These are equally numerous as the examples of dilution of norms, as calls for robot
personhood, artificial intelligence agency, or animal habeas corpus indicate. Rather than
attempting to argue for convergence of these two different paths, we invite a diffractive
reading of personhood “attuned to differences—differences that our knowledge-making
practices make and the effects they have on the [personhood].”6

Alongside an invented tradition of ancient origin, there is a myth of unprecedented
inattention fostered by authors writing on the topic of legal personhood. It is commonplace
to argue that personhood is “grossly undertheorized”7 while at the same time participating
in a lively debate over personhood across number of disciplines.8 This foundational myth
constitutes the power of a proposed solution and its original, explanatory power by revealing
the unprecedented inattention to personhood and, in doing so, making the author’s
attention to it even more mystical in return.9 Closely resembling what Susan Marks calls the
myth of the dangerous dark,10 the authors reveal their insights on personhood as a means
to reveal something concealed within the dark folds of personhood that the inattention
intensifies.11 Most often, the myth of unprecedented inattention highlights the fact that due
to this inattention, a legal entity is discriminated against or not seen in the proper light. The
present notion of personhood, grossly undertheorized as it might be, is a malign ideological

5 See General Data Protection Regulation 2016/679, 2016 O.J. (L 119); see also Opinion 4/2007 of the Data
Protection Working Party on the Concept of Personal Data, 01248/07/EN WP 136) 22–23 (discussing the concept
of personal data).
6 KAREN BARAD, MEETING THE UNIVERSE HALFWAY 72 (2007).
7 David Fagundes, Note: What We Talk About When We Talk About Persons: The Language of a Legal Fiction, 114
HARV. L. REV. 1745, 1768 (2001).
8 For other examples from upholding this myth, see, e.g., Stephen C. Hicks, On the Citizen and the Legal Person, 59
CINCINNATI L. REV. 789, 869 (1991); Anu Pylkkänen, Onko oikeuden henkilöllä sukupuolta?, 36 OIKEUS 147, 148 (2007)
(asking to “develop an understanding of the legal person,” or noting how little discussion there is on what
personhood entails” (author translation)).
9 See ROLAND BARTHES, MYTHOLOGIES 29 (1972).
10 Susan Marks, Four Human Rights Myths, in HUMAN RIGHTS 217, 231 et seq. (David Kinley, Wojchiech Sadurski, &
Kevin Walton eds., 2013).
11 For a discussion with regard to fetal personhood and women’s rights, see Alejandro Madrazo, Narratives of
Prenatal Personhood in Abortion Law, in ABORTION LAW IN TRANSNATIONAL PERSPECTIVE: CASES AND CONTROVERSIES 327
(Rebecca J. Cook, Joanna N. Erdman, & Bernard M. Dickens eds., 2014).
1020 German Law Journal Vol. 18 No. 05
lens that inverts the universal legal reality it is supposed to uphold to veer towards
particularism.12 Re-adjusting personhood, the myth insists, will correct the wrongs endured.
But could it be, as Marks suggests that “we should be more concerned with what happens
in broad daylight, then perhaps the key myth is mystification itself—the myth of myths?”13
Here, we attempt to steer away from repeating the myth of unprecedented inattention.
Rather, we seek to analyze the curious perception that often the very act of casting a light
on inattention has been employed to perpetuate injustices attributed to that inattention.

Thus, ours is an attempt to build a new tradition and construct a myth to uphold an
ideological utopia of legal personality, or, alternatively, a readjustment of the present
voluminous debate to address that which hides in the plain sight. This introduction is divided
into two distinct parts. The first part provides a brief historical background of the conceptual
development of legal personhood in the Occidental legal systems and their offspring, the
Eurocentric international law. The latter part offers a more contemporary backdrop within
which the articles of the present special issue operate as well as a modest proposal for a lens
through which to reflect the emerging arguments for and against new categories of
personhood. Even though these parts function independently, the theory formulation in the
latter part builds upon the nuanced history of legal personhood.

B. Building a Tradition

The persons/things distinction in the law has many roots. Most Occidental normative orders,
whether ecclesiastical or legal, presume existence of such a distinction. The Judeo-Christian
maxim of humans’ dominion over nature, for instance, adheres to it. The most recurrent
reference to a starting point of legal distinction between persons and things emanates from
Ancient Roman Law. Gaius, in Institutiones, divides the realm of law into three categories:
persons (persona), things (res), and actions (actiones).14 According to the system of the
Roman law explained by Gaius, slaves as well as paterfamilias, head of the household, are
humans (homo) but not necessarily persons (persona). They may be unequal humans, but
humans nonetheless. Also, it is important to note that status as a person fluctuated
throughout one’s life. Being a human did not prevent one from coming into possession of
another. A human could be owned and traded much like a thing, but never become merely
a thing. That same human could later gain the status of a person with all the rights and duties
that followed. Thus, even though Roman law clearly marks the origin of distinction between
persons and things that we still evince today—a fact both lawyers and philosophers agree
on—present meaning given to this distinction is of much later origin. The Roman law might

12 For such a reading of ideology’s traits, see Paul Ricoeur, Ideology and Utopia as Cultural Imagination, 7 PHILOS.
EXCH. 17 (1976).
13 Marks, supra note 10, at 232.
14 See GAIUS, INSTITUTIONES 13 (E.A. Whittuck ed., 4th ed. 1904).
2017 Personhood: An Introduction 1021

have contributed to what Roberto Esposito titles a dispositif of a person,15 as discussed, or
alternatively we may consider that Roman law functioned as an example of Law for later
scholars who have been decisive in formulating our present understanding of personhood
and “thinghood .”16

I. An Enlightened Way to Make Persons

Many of the histories of legal personhood share much more than a story of origin. The
presence of Immanuel Kant, out of all Enlightenment philosophers, is one of these recurring
features among legal scholars, even though the Enlightenment provided several
formulations of agency, morals, and law.17 Kant’s argument for the inner worth of a person
through her dignity, in contrast to a price carried by a thing, lays the groundwork for the
modern concept of a legal person. As a consequence of embedding Kant’s formulation into
law, the formerly porous border between person and thing is sealed. Where relatively late
into the 18th century an animal on trial could readily be compared to a human, a thing in the
Kantian system cannot be endowed with such dignity.18 For Kant, the distinction between a
person and a thing relies ultimately on the capacity for autonomous agency manifested
through moral action that creates a nexus between acts and persons. In short, working his
way through Roman law and its distinction between persons and things, Kant established an
additional condition for personhood, namely the capacity for moral action, which seemed
to exclude not only non-humans but also a part of humanity outside its scope.19 While similar
classifications had permeated both into law and into philosophy before Kant, it was precisely
Kant’s formulation that gained widespread recognition and imitation, especially in the civil
law tradition through the work of Friedrich Carl von Savigny.20 According to Savigny, rather

15 See Roberto Esposito, The Dispositif of the Person, 8 L. CULT. & HUMAN. 17 (2012); ROBERTO ESPOSITO, THIRD PERSON:
POLITICS OF LIFE AND PHILOSOPHY OF THE IMPERSONAL (2012).
16 Christine M. Korsgaard, Kantian Ethics, Animals, and the Law, 33 OXF. J. LEG. STUD. 629 (2013); Rafael Domingo,
Gaius, Vattel, and the New Global Law Paradigm, 22 EUR. J. INT’L L. 627 (2011).
17 See, e.g., JONATHAN ISRAEL, RADICAL ENLIGHTENMENT: PHILOSOPHY AND THE MAKING OF MODERNITY (2001) (discussing the
influence of different stages of Enlightenment with different views regarding universality and what he titles Radical
Enlightenment). For a materialist critique on the influence of this, see ANTOINE LILTI, 64 COMMENT ECRIT-ON L’HISTOIRE
INTELLECTUELLE DES LUMIERES? SPINOZIME, RADICALISME ET PHILOSOPHIE ANNALES. HISTOIRE, SCIENCES SOCIALES (2009); ANN
THOMSON, BODIES OF THOUGHT: SCIENCE, RELIGION, AND THE SOUL IN THE EARLY ENLIGHTENMENT (2008) (attempting to provide
a counter-narrative).
18 The matter was not solely of having trials for animals, but also “the court, viewing insensate creatures as the
equivalent of vulnerable minor.” See Esther Cohen, Law, Folklore and Animal Lore, PAST & PRESENT 6, 13 (1986).
19 As Christine Korsgaard argues, such a position is not sole or even the most likely interpretation of Kant’s
formulation. Nevertheless, the way Kant’s tradition is perceived at present matters relatively little to past
interpretation of his work by legal theorists. See Korsgaard, supra note 16.
20 But see Donald R. Kelley, Gaius Noster: Substructures of Western Social Thought, 84 AM. HIST. REV. 619, 645 et seq.
(1979) (providing an interpretation of Savigny’s limited impact outside his work in Roman law).
1022 German Law Journal Vol. 18 No. 05
than receiving dignity and personhood through moral agency, human beings commanded
innate value through the freedom they enjoyed, which ultimately led him to conclude that
humans, and humans alone, enjoy legal capacity.21 Through these successive steps, an open
category of a person was first tied to the capacity to act morally, which gained its legal
formulation in an even more restrictive formulation that equated such capacity with
humanity.

While legal personhood, on a classificatory plane, granted all humans an inherent and equal
recognition before the law, positive law limited or even fully negated these rights on a
number of occasions. The most noted instances are related to the treatment of slaves,
people in the colonies, women and children, and those deemed to be lacking mental
capacity. This friction between general dictates of humanity and reducing humans to
property is clearly played out in a late 18th century case of a slave brought from America to
England.22 On arrival to England, Somerset—the slave—demanded to be set free, while
Somerset’s master rejected his claim to freedom, referring to Somerset as his possession
and asserted his rights of property ownership over the slave. The court accepted Somerset’s
claim, but for reasons that were more tightly connected to the state of positive law than on
general principles of humanity, “drawing a clear distinction between Somerset’s status as a
human and his status as a legal person.”23 Thus, a denial of rights through concepts of
individualism and property is the other facet of the Enlightenment tradition carried over to
the present, demoting some individual human beings to a status closer to thinghood. It is an
idea shared equally by Kant and Savigny, as well as Austin in the common law tradition.24
Austin formulated his own theory as an analytical will theory: for as long as there is a will,
there is an entity that the law can command.25 It is this positive law tradition that also clearly
expands the philosophical foundation of the distinction between persons and things further

21 See FRIEDRICH CARL VON SAVIGNY, 2 SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS 60 (1840).
22 Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.).
23 David J. Calverley, Legal Rights for Machines: Some Fundamental Concepts, in MACHINE ETHICS 213, 219 (Michael
Anderson & Susan Leigh Anderson eds., 2011). Compare however to an account provided in JOHN T. NOONAN,
PERSONS AND MASKS OF THE LAW: CARDOZO, HOLMES, JEFFERSON, AND WYTHE AS MAKERS OF THE MASKS (1976) highlighting the
role of Blackstone in shaping the doctrine rather than considering the outcome merely a neutral enactment
between positive law and more general principles of common law.
24 Richard Hartzmann, John Austin, in DICTIONARY OF LITERARY BIOGRAPHY: BRITISH PHILOSOPHERS 1800-2000 18–25 (2002);
M. H. Hoeflich, John Austin and Joseph Story: Two Nineteenth Century Perspectives on the Utility of the Civil Law for
the Common Lawyer, 29 AM. J. LEG. HIST. 36 (1985).
25 See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 5 (1832).
2017 Personhood: An Introduction 1023

towards contractual and utilitarian foundation,26 though such features were also
perceived—at least by its critics—in the main treatises of the German historical school.27

The outline of the persons/things distinction embraced by Enlightenment thinkers and social
theorists, lawyers and legal scholars included therein, embedded possessive individualism
at the heart of Western normative enterprise.28 A legal person, equated with willfulness or
a human holding interest, functioned as a basis also in social reforms pursued from the late
18th century to the mid-20th century. For a disparate range of thinkers, property served as a
model of rights: a primary right among rights. The nexus of freedom and property made it
entirely justifiable to demote or deprive rights for those lacking property.29 Thus, many of
the first human rights declarations, in addition to limiting rights to men, limited political
rights of those having large debts. These tensions between property and more general
human rights are well illustrated through the example of auctioned children—and in some
cases elderly and disabled—in Sweden and Finland in late 19th and early 20th century. In this
practice, children that fell under the custody of a municipality were publicly auctioned to
the lowest bidder, subjecting some auctioned children to slavery-like conditions.30 The
practice—delegalized in 1918 in Sweden and 1923 in Finland—continued in Finland well into
the 1930s, an era when supposedly everyone was granted equal rights according to the
Finnish Constitution.31 A lack of means to economically support oneself allowed persons to
be demoted to a category of chattel, while large property holdings garnered an increasingly
independent status resembling that of a natural person.

Corporations were the hallmark of the extension of rights and legal personality annexed to
bodies of property. These were hardly novel developments in the late 18th and 19th century
societies where Savigny, Austin, and others worked. The marked difference between earlier

26 See Hoeflich, supra note 24, at 44.
27 See Kelley, supra note 20, at 644.
28 It is contested to what extent the individual’s command or possession over herself was the very founding treatise
of individualism and subsequent form of governance and of law. For debate, see, e.g., C.B. MACPHERSON, THE POLITICAL
THEORY OF POSSESSIVE INDIVIDUALISM (1977); Quentin Skinner, The Ideological Context of Hobbes’s Political Thought, 9
HIST. J. 286 (1966), but few would, according to Peter Lindsay, Possessive Individualism at 50: Retrieving
Macpherson’s Lost Legacy, 21 GOOD SOC. 132, 134 (2012) question the existence of such claims at the heart of
Enlightenment perception of an individual that was later embodied as a person.
29 For the historical origins of this nexus, compare Morris R. Cohen, Property and Sovereignty, 13 CORNELL L. Q. 8, 18
et seq. (1927), with 2 HEINRICH AHRENS, COURS DE DROIT NATUREL OU DE PHILOSOPHIE DU DROIT. 7 et seq. (7th ed. 1875)
(providing accounts stressing other foundational nexii, such as humanity).
30 See Sofia Lundberg, Child Auctions in Nineteenth Century Sweden: An Analysis of Price Differences, 35 J. HUM.
RESOURCES 279 (2000); Elisabeth Engberg, Boarded Out by Auction: Poor Children and Their Families in Nineteenth-
Century Northern Sweden, 19 CONTIN. CHANG. 431 (2004).
31 See FINLAND [CONSTITUTION] July 17, 1919, section 5 (containing general equality clause); Id., section 6(1) (protecting
inter alia personal liberty).